Whip system has stripped Dáil of its independence

With characteristic subtlety, Shane Ross proposed a motion in the Dáil last evening, drafted more for self-promotion than to further any substantive outcome, on the promissory note €3.1 billion payment due at the end of next month.

It spoke of “the imminent danger of Ireland’s humiliation in the negotiations” with the European Central Bank, and called on the Government to state Ireland was unwilling to pay.

The motion has no chance of being passed by the Dáil this evening, not even any chance of encouraging a bit of wavering by Government TDs. Not that it had any chance anyway, for the Dáil is a creature of the Government, with no independent existence, deprived of its constitutional function by the cynical “old politics” the two parties in Government laughably promised to end two years ago.

The Dáil itself voted to abrogate any say it might have over how the financial institutions might be funded, thanks to the State in the Credit Institutions (Financial Support) Act of 2008. Because of this, the Dáil has no say on whether the promissory note payment of €3.1 billion is to be paid on March 31st. There is a slight constitutional doubt about this, however, and about the way “non-voted expenditure” has been operated for decades.

Unsuccessful challenge

This constitutional issue was one of the points raised on behalf of David Hall, who instituted an unsuccessful challenge to the payment without Dáil approval of the promissory note in March. The issue was not adjudicated upon then because the court found against him on a preliminary point: that he lacked locus standi (a basis on which to challenge an issue).

High Court president Nicholas Kearns found that only a TD or a Senator could bring such a challenge.

But even if it was found that the Dáil had a constitutional entitlement to adjudicate on whether the promissory note payment was to be made, the manner in which the Dáil operates negatives any independent function the Constitution envisaged the Dáil exercising – this is done via the whips system.

And nobody thinks the independence of the Dáil from the Government should be strengthened by a constitutional amendment. Anyway, this could never happen, for the government of the day would prevent this going to the people in a referendum, by the exercise of that power over the Dáil, via the party whips.

There was an illustration of the absurdity of this in the Dáil last month.

Aengus Ó Snodaigh of Sinn Féin introduced a Bill, the Social Welfare (Amnesty) Bill 2012, which would have provided an amnesty to those on social welfare who, through no fault of their own, were in receipt of higher payments than those to which they were entitled, because of an error on the part of the Department of Social Protection or a genuine error on the claimant’s part. He claimed the Bill would save the exchequer €50 million a year, and this was not seriously disputed in the ensuing debate.

Under the present scheme the department demands full repayment of whatever was overpaid. People living on the margins simply cannot afford the repayment schedule imposed. They therefore continue to be overpaid and remain in fear of being caught. An amnesty of even short duration would enable such people to regularise their payments without a requirement of repayment and without penalty, saving the State significant funds.

Aengus Ó Snodaigh pointed out: “No attempt will be made to recover the €160,000 that was overpaid in error to the HSE director designate Tony O’Brien since 2006 through no fault of his own. There is no slight on him. It was a clerical error but no attempt will be made to recover that money.” Willie O’Dea welcomed the Bill on behalf of Fianna Fáil but expressed reservations about it for, as drafted, it would have enabled big fraudsters to escape retribution.

Several others spoke in favour of the Bill, including Fine Gael deputies Terence Flanagan and Frank Feighan. Terence Flanagan said: “The introduction of a social welfare amnesty period is a worthwhile move that would generate further savings for the department and the exchequer, particularly if its introduction is needed to address overpayments in genuine cases. The Minister should examine the details of any proposed amnesty that would deal with some of the genuine errors that are not deliberate...”

Frank Feighan said: “The Bill proposes to provide social welfare recipients with an opportunity to voluntarily disclose and report irregularities in their existing social welfare payments and to have their rate of payment regularised.”

In a response redolent of Homo neanderthalensis, Labour Minister for Social Protection Joan Burton was having none of it. And because the Government Minister didn’t approve, Government TDs voted to disapprove, whatever they believed. This was even though whatever flaws the drafted Bill may have contained could have been corrected had it reached committee stage. But no way.

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